Holding

Solitary confinement and fettering of prisoners without a prior hearing contravene Article 21, and Section 46 of the Prisons Act and the Rajasthan Prison Rules are valid only insofar as they are read in conformity with the Supreme Court's directives in Sunil Batra and Rakesh Kaushik.

Summary

Three prisoners filed a writ petition alleging illegal solitary confinement for 8‑11 months and the imposition of iron fetters on flimsy grounds. The Supreme Court ordered their immediate release from solitary confinement, examined the circumstances of alleged police violence during transit, and directed medical treatment. The Court held that such confinement and fettering without a hearing violate Articles 14, 19 and 21 of the Constitution and that natural‑justice procedures must be observed before punitive measures are imposed. Section 46 of the Prisons Act and Rules 1(f) and 79 of the Rajasthan Prison Rules were upheld only subject to the directions given in Sunil Batra and Rakesh Kaushik. The Court directed the Rajasthan government to issue rules implementing these principles and reminded lower courts to enforce them, thereby granting the petitioners relief.

Issues considered

Whether solitary confinement and the imposition of fetters without a hearing violate constitutional rights under Articles 14, 19 and 21.
Whether Section 46 of the Prisons Act and the relevant Rajasthan Prison Rules are constitutionally valid.
Whether natural‑justice requirements must be complied with before imposing punitive restrictions in prison.
Whether the State must frame rules to give effect to the Supreme Court's directions on prison administration.

Legislation cited

Prisons Act, 1894s. 46
Rajasthan Prison Rules, 1951s. 1(f), s. 79

Subjects

solitary confinementfettersprison lawnatural justiceArticle 21habeas corpusprison administrationhuman rightsSection 46Rajasthan Prison Rules

Judgment

995

KISHOR SINGH RAVINDER DEV ETC. A
v.
STATE OF RAJASTHAN

November 4, 1980
B
[V. R. KRISHNA IYER & R . S. PATHAK, JJ.]
Prisons A ct, 1894-Section 46-Keeping of Prisoners in solitary confine-
ment and putting bar fetters for loitering and insolent behaviour-Validity of
Natural Justice-Prison authorities, if should give an opportunity of
being heard before imposing punishment 011 prisoners.
One of the petitioners, in a telegram to one of the Judges of this Court c
complained of insufferable, illegal solitary confinement. He also complained
that he was kept in iron fetters alongwith the other two \)etitioners. By an
order of this Court, the petitioners were directed to be set free from solitary
confinement and brought before the Court. When the prisoners were brought
before the Court they alleged that, while in transit, violence had been used
by the escort police on the person of one of the petitioners resulting in deep
wounds on his person. The Superintendent of Prisons who was present in D
the Court was directed to take special care of the prisoner after giving him
proper medical treatment.
Allowing the petition
HELD: 1. Article 21 would become dysfunctional unless the agencies
of the law in the police and prison establishments have sympathy for the
humanist creed of that Article. The State must re-educate the police and
inculcate a respect for the human person. If any of the escort were found
to have ·misconducted themselves they should be given condign punishment.
{999G, D , E]
2. By keeping the prisoners in separate solitary rooms for long periods
ranging .fr6m 8 to 11 months, putting cross· bar fetters for several days on
the flimsy grounds of loitering in the prison, behaving insolently and in an
F
uncivilised manner the prison authorities have acted in utter disregard of the
mandate of this Court in Sunil Batra. [lOOOD·E]
3. The Jail Superintendent's version that he had given a hearin~ to the
prisoners before punishing them cannot be believed. Neither section 46 of
the Prisons Act nor Rule 79 of the Rajasthan Prison Rules can be read in
the absolutist expansionism, the Prison Authorities would like them to be
read. . That would virtually mean that prisoners are not persons to be dealt G
with at the mercy of the prison echelons. Articles 14, 19 and 21 operate
within the prisons in the manner explained in Sunil Batra (1). A separate Cell
is not different from solitary confinement. [lOOIB, 1002G·H]
(i) If special restrictions of a punitive or harsh character have beeu
imposed for convincing security reasons, it is necessary to comply
with natural justice ~s indicated in ·sunil Batra. il'here must be an H
appeal from a prison authority to ·a judicial organ when such treat-
ment ia meted out. [1003A]
996 SUPREME COURT REPORTS [1981) · 1 S.C.R.
•
A (ii) Section 46 of the Prisons Act and Rules 1(0 and 79 of the Rajastban
Prison Rules are valid subject to the directions given, by this. Court
in Rakesh Kaushik. [1003Gl
(iii) The Sessions Judges in the State of Rajasthan should remember the
rulings of this Court in Sunil Batra I and II and Rakesh KaUshik and.
act in such manner that judicial authority over sent~nces. and the
conditions of their inCarceration are not eroded by judicial in·action.
B [1004AJ
Sunil Batra v. Delhi Administration [1979] 1 SCR 392 Sunil Batra v. Delhi
Administration [1980] 2 SCR S51, Rakesh Kaushlk v. B. L. Vig, Superi•.ttndent
Central Jail, New Delhi [19801 3 S.C.R. 929. applied. ·
ORIGINAL JURISDICTION : Writ Petition No. 5287 of 1980.
c (Under Article 32 of the Constitution).
P. H. Parekh, Amicus Curiae for the "Petitioner.
B. D. Sharma for the Respondent.
, The Judgment of the Court was delivered by -
D
KRISHNA IYER, J.-The moral of this case is P,Oignant: So long
as an iron curtain divides the law set by the Constitution and lit
by the Supreme Court from the minions of the State, so long shall
this Court's writ remain a mystic myth and harmless half-truth
making law in the books and law-in-action distant neighbours. This
E shall not be.
, The sombre scenario unfurled by this habeas corpus proceeding·
begins with a telegram (dated 3-10-1980) on behalf of the
prisoners-:-the petitioners- to one of us, complaining, manu ·brevi.
or insufferable, illegal solitary confinement punctuated by periods of
iron fetters, a lot shared by two others with him in Jaipur Central
F
Jail. . This trauma-laden message reads :
"Convict Kishore Singh Ravinder Dev Pareek Surjeet Singh •
Central Jail Jaipur confined in cells with fetters illegally un-
constitutionally more than eight months habeas corpus writ
prayed order enquiry and save . . • • . . . • . . . . . . Daulat Singh".
. ' <
G This grievance of the prisoners in 'twisted gyves' triggered off judicial
action with telegraphic speed, as it were, and the Bench directed
that the prisoners be forthwith liberated from solitary confinement
and freed from fetters in terms of the law laid down by this Court
in Sunil Batra's case (1)( 1 ). That order dated Oc!Qber 6, 1980
H reads:-
"We appoint Shri P. H. Parekh ;!S amicus curiae.
------
(!) [1979) 1 S.C.R. 392.
K!SHOR SINGH v. RAJASTHAN (Krishna Iyer, J.) 997

If the petitioner is in solitary confinement, he will be A
released from solitary confinement forthwith in the light of the
decision of this Court in Sunil Batra's case. The Superintendent
of the Central Jail concerned will report' to this Court on 21st
October 1980 the number of cases with particulars of persons
in solitary confinement in that prison. · He will appear in
'person on that date. Notice to Shri B. D. Sharma, Standing B
Counsel for the State of Rajasthan.
Counsel's services, under our litigative process, are a necessary
facility for remedial justice and so we took this step of appointing
Shri P. H. Parekh as amicus curiae. The whole bar, if it has a
larger dedication, is amicus curiae, because no cause should be c
dearer to a people-oriented, justice-centred profession, despite its
esoteric geµes, elitist strands and· lucrative slant, than to be a
decisive actor in the democracy of judicial remedies so that no man-
be he poor man or prisoner, dissenter, delinquent, eccentric or
extremist-shall suffer what the law forbids. In this Court, the
members of the bar, whenever called up by the ]:>ench have kept D
the door ajar and unfailingly helped the Court as free janitors of
justice and free forensic functionaries at the ~ervice of any one
aggrieved by injustice arid seeking legal justice. A~ter a11 1 the
great proposition. that inspires the calling of justicing-by the Bench
and the Bar alike--is best expressed by Dr. Martin Luther King
(Jr) in his letter from Alabama Prison : E
Injustice anywhere is a threat to justice everywhere. We
are caught in an inescapable network of mutuality, tied in
a single garment of destiny. Whatever affects one directly
affects all indirectly.
We must, even here, record our appreciation of Shri Parekh's F
passion for the prisoners' cause coupled with pains-taldng presen-
tation of the grievances they had. So too Shri B. D. Sharma's
commitment to jail justice, beyond jailor's injustice i.e. his client's
brief. In retrospect, we feel it was right that we took quick
action to liberate the three prisoners from their callously lonely,
G
barbarously fettered solitary custody. Justice must be instant and
it has been wisely said : "Caution, caution, sir ! It is nothing but
'Y · the word. of cowardice ! ( 1 ) Where human bondage and personal
torture are involved, to wait is to defeat. In personal liberty juris-
prudence, this court has not tarried or teetered and shall not. The
reason is clear. The writ must right the wrong forthwith or must H
stand self-condemned as make-believe. Where justice is in jeopardy
(1) John Brown: quoted by Bruce Catto:i, Life, Sept. 12, 1955.
3-6 S. C. IndiajND/81
998 SUPREME COURT REPORTS (1981] 1 S.C.R.

A m freedom is in fetter5 the court is n0t non-aligned and acts with
· sensitive speed. Time is of the essence where otherwise torture is
the consequence.
The order of this court dated 6-10-1980 brought counsel on
both sides into tho scene, set free the prisoners from the hateful
B 'solitary' and summoned before us the presence of the Superinten-
dent of the Prison on 21-10-1980 to answer for his breach of the
fundamentail law laid down in Sunil Batra(1). On that day, i.e.
21-10-1980, after a brief hearing, we directed :
"The respondent will file a detailed affidavit giving parti-
culars and also produc<:: the proceedings relating to the enquiry
c held resulting in solitary confinement. 'fhe prisoner will be
produced on 24-10-1980 in this Court and Shri Parekh will be
allowed to interview him."
Pursuant to this order, th~ Superintendeat of the Jail submitted his
explanation for what in tha light of the Batra (supra) ratio, is
D unlaw. We will presently consider the conduct of the delinquent jailor
but the more disturbing episode brought to our painful notice was the
violence allegedly used by the escort police on the person of one
prisoner, Surjeet Singh, while in transit and testified to by the visible
wounds counsel found. Shri Parekh shocked us into shame by seeking
to show us the physical injuries inflicted. If the writ of this court
E brings a person from the Jaipur Prison to jmlicial presence can it
be that a little set of constables in custody during transit violate,
with brazen bru!ality, and criminal immuJlity the person of their
charges and the hands of r.he law hang limp in the face of such
lawlessness ?
"Justice without power is inefficient; :mwer without justice
F is tyranny. . . . Justice and power must therefore be brought
together, so that whatever is just may be powerful, and what-
ever is powerful may be just." (Blaise Pascal)
So, we ordered :
"We are very disturbed to be told by Shri Parekh, amicus
G curiae that one of the prisoners, Surjeet Singh while being taken
to this Court was manhandled severely. Counsel says that
there are bruises and other signs of injuries on his person. The "'°
Superintendent of the Jail, who is present in Court, will take
special care !o see that this prisoner is taken to Jaipur safely.
The Super-inten'1ent will take the prisoner Surjeet Singh to Ram
·tt Manohar Lohia Hospital today for examination of the prisoner

(I) [19781 4 sec 494.
KISHOR SINGH v. RAJASTHAN (Krishna Iyer, J.) 999

and also for proper treatment which may be suggested by the A
Doctor in the Hospital. fo the light of the medical report the
Superintendent will lay first informatLon be~ore the Police
Station concerned against the constables who are. the escorting
police. It will be open to the prisoner himself to lay a com-
plaint and facilities will be afforded by the prison authorities.
We make it clear that the investigation should not have the B
slightest taint of departmental inclination to help a policeman
if there is evidence of delinquency. A report wi11 be put into
this Court about what has been done, by 31-10-1980."
,_ Thereafter, the medical report, of which we have been apprised
by Shri Parekh, the report against the constables concerned, reported c
to us by Shri Sharma, are taking their cours@. We do not make any
observations thereon as that is the subject of a separate enquiry.
Even so, no police life-style which relies more on fists than on writs,
on torture more than on culture;~can control crime, because means
boomerang on ends and re-fuel the vice which it seeks to extinguish.
Secondly, !he State must re-educate the constabulary out of their D
·sadistic arts and inculcate a respect for the human person-a process
which must begin more by example than by precept if the lower
rungs are really to emulate. Thirdly, if any of these escort police-
men are found to have misconducted themselves, no sense of police
solidarity or in-service comity should induce the authorities to hide
the crime. Condign action, quickly taken is surer guarantee of com- E
munity credence than bruiting about that 'all is we11 with the police,
the critics are always iE1 the wrong'. Nothing is more cowarqly and
unconscionable than a person in police custody being be!lien up
and nothing inflicts a deeper wound on our con·stitutional culture than
a State official running berserk regardless of human rights. We
believe the basic pathology which makes police cruelty possible will F
receive Government's serious attention. Who will police the police ?
What psychic stress and social deprivation of the constabulary's life-
style need corrective healings ? When wiH 'wits, not fists' become
a police kit ? When will the roots of 'third degree' be plucked out
and the fresh shoots of humanis~ respect put out ? We make these
tJbservations in the humane hope that Art. 21, with its profound G
concern for life and limb, will become dysfunctional unless the
agencies of· the law in the police and prison establishments have
sympathy for the humanist creed of t,hat Article.
This Court has frowned upon harrdcuffs save in the 'rarest of
rare' cases where ·security will be seriously jeopardized unless iron H
restraint is necessarily clamped on the prisoner. We are heartened
to know that there are States where escorting is done with civility
1000 SUPREME COURT REPORTS [1981] 1 S.C.R.

A and humanity. For instance, para 443 of the Kentla Police Manual.
1970, Vol. II, reads :
"443. (1) The use of hand-cuffs .or ro12es causes humilia-
tion to the person subjected to the restraint, and is contrary to
the modern policy regarding the treatment of offenders. There-
B
fore, handcuffing and/ or binding shall be restricted to cases
where a person in custody is of a desperate character, or where
there are reasons to believe that he will use '!iolence or attempt
to escape or where there are other similar reasons necessitating
such a step.
We mention this here since policemen who beat those in their
c custody may with easy conscience handcuff and footcuff their charges,
a course contrary to Art. 21..
The harrowing facts, in substantial measure emerge even from
the statement of the case by the,. State. The petitioners have
admittedly been kept in separate solitary rooms for long periods from
8 months to 11 months-spells long enough to be regarded as
D
barbarous if Sunit Batrds (supra) is to prevail. Aqmittedly,
cross-bar fetters were put in Kishore Singh for several days and on
Surjeet Singh for 30 days---counsel for the petitioner has rightly
submitted that flimsy grounds like "loitering in the prison", behaving
insolently and in an "uncivilised" manner tearing off his history
E ticket, were the foundation for the torturesome treatment of solitary
confinement and cross-bar fetters. We have read the affidavit of
~he Superintendent and feel utterly unsatisfied, that the mandate in
Sunil Batra (supra) has been obeyed. This case and the uncivilised
orders of cellular solitude and traumatic fetrters compels us to repeat
what we stated earlier in SunU Batra (II) : ( 1 )
F The essence of the matter is that in our era of human
rights consciousness the habeas writ ha,s functional plurality
and the constitutional regard for human decency and dignity is
tested by this capability. We ideologically accept the words of
Will Durant: ( 2 )
It is time for all good men to come to the aid of their
G ·party, whose name is civilization.
Likewise, we endorse, as part of our constitutional thought, ""f"
what the British Government's White Paper ( 3 ), titled "People in
Prison", stated with telling effect :
(1) Sunil Batra v. Pelhi Admn. [1980] 3 SCC 488 at 494. . .
H (2) Will Durant's Article: "'What Life Has Taught Me" pub. in Bhavan's
Journal, Vol. XXIV, No. 18, quoted in [1978] 4 SCC 494 at 514, para 42.
(3) Will Durant's Article quoted in [1978] 4 SCC 494 at 514.
KISHOR SINGH v. RAJASTHAN (Krishna Iyer, J.) 1001

A society that believes in the worth of individual beings A
can have the quality of its belief judged, at least in part, by the
quality of its prison and probation services and of the resources
made available to them.
We do not accept the Superintendent's version that he had given -
a hearing to the prisoners before punishing them. It is a self-defen-
B
sive pretence and perhaps the only veracious alibis available to him
are that the vintage Prison Rules (Rule 1 (f) Part 16 and Rule 79
of the Rajasthan Prison Rules, 1951) suppont the administrative
absolutism of the prison boss and more to the point as counsel
Shri Sharma candidly stated. The Superintendent was 'innocent' of
the benign prescriptions in Sunil Batra (II) decision(!). Indeed, c
Shri Sharma, convincingly persuaded us to take a lenient view of
the delinquency of the Superintendent by emphasising that he had
taken the Prison Superintendent through the effective exercise of
reading and explaining the Batra rulings( 2 ) and assuring us that no
more of solitary confinement disguised as "keeping in separate cell"
and imposition of fetters will take place, save in the rarest of rare D
cases and with strict adherence to the procedural safeguards contained
in the decisions of this Court relating to the punishment of prisoners.
We accept the bona fides of the prison official but emphasise that
violation of Art. 21 as interpreted by this Court in its recent deci-
sions, if repeated, will be visited with more serious consequences.
Even so, we will refer to the scripture relied on as absolvent of the E
sin complained of and reiterate tersely the mandatory prescriptior1s
and prescriptions implicit in Art. 21 and elucidated by case-law.
Rules 79 and 1 (f) of Part VI of the Rajasthan Prisons Rules,
may be extracted here :
79. "Special Precautions for security : The Superintendent F
shall use his discretion in ordering such special precautions
as may be necessary to be taken for the security of any im-
portant prisoner, whether he has received any warning from
the Magistrate or not, as the Superintendent is the sole Judge
of what measures are neces~ary for the safe custody of the
prisoners; he shall be held responsible for seeing that precau- G
tions taken are reasonably sufficient for the purpose.
1 (f) Cells may be used for the confinement of convicted
criminal prisoners who are in the opinion of the Superintendent,
likely to exercise a bad influence over other prisoners, if kept
in their association. H
(1) [1980J 3 sec 488.
(2) [1978] 4 sec 494 and [1980] 3 sec 488.
J.002 SUPRE~1E COURT REPORTS (1981] 1 S.C.R.

A These Rules were framed under s. 46 of the Prisons Act which also
may be read at this stage :
46. The Superintendent may examine any person touching
any such offence, and determine thereupon and punish such
offence by ..... .
B ( 6) imposition of handcuffs of such pattern and weight,
in such manner and for such period, as may be pres-
cribed by rules made by the Governor General irr
Council;
~7) imposition of fetters of such pattern and weight in
··~
c such manner and for such period, as may be prescribed·
by the rules made by Governor General in Council;
(8) separate confinement for any period not exceeding
three months;
Explanation.-Separate confinement mean~ such confine-
ment with or without labour as secludes a prisoner
from communication with, but not from sight of other
prisoners, and allows, him not less than one hour's exer-
cise per diem and to have his meals in association with one
or more other prisoners;

E (9) Cellular confinement means such confinement with or
without labour as entirely secludes a prisoner from .>-
communication with, but not from sight o~ other
prisoners;

F
We cannot agree that either the Section or the Rules can be
read in the absolutist expansionism the prison authorities would like
(
us to read. That would virtually mean that prisoners are non-
persons to be dealt with at the mercy of the· prison echelons. This.
country has no totalitarian territory even within the walled world we
call prison. Articles 14, 19 and 21 9perate within the prisons in
the manner explained in Sunil Batra (I) (supra), by a Constitution
G Bench of this Court. It is significant that t.lie two opinions given
separately in that judgmefrt agree in spirit and substance, in reason-
ing and conclusions. Batra in that case was stated to be in a
separate confinement and not solitary cell. An identical plea has
been put forward here too. For the reasons given in Sunil
Batra's case we must overrule the extenuatory submission that a
H separate cell is different from solitary confinement. The petitioners
will, therefore, be entitled to move within the confines of the prison
like others undergoing rigorous imprisonment. If special restrictions.
KISHOR SINGH v. RAJASTHAN (Krishna Iyer, J.) 1003

of a punitive or harsh character have to be imposed for convincing A
security reasons, it is necessary to comply with natural justice as
indicated in Sunil Batra case. Moreover, there must be an appeal
not from Caeser to Caeser, but from a prison authority to a judicial
organ when such treatment is meted out.

Sobraj in the same case (Sunil Batra, supra) was kept in fetters B
and reasons more persuasive than in the present case were put
forward in defence. This Court, however, directed "such fetters
shall forthwith be removed". Of course, we do not place any
absolute ban but insist that only in extreme cases of compelling
necessity for security of other prisoners or against escape can such
fettering be resorted to. Human dignity is a dear va·lue of our
c
Constitution not to be .bartered away for mere apprehensions enter-
tained by jail officials. The latter decision of this Court in Sunil Batra
ll (1) clothes with flesh and blood the principles laid down in
Sunil Batra (I) (supra). In Rakesh Kaushik( 2 ) the position has
advanced further and concrete directions have been issued which we D
extract here because t)l.e law laid down by this Court applies not
to one State or the other but to all national institutions in the country:

"(2) He will furrther enquire, with specific reference tO the
charges of personal assault and compulsion for collaboration in
canteen swindle and other vices made by the prisoner against
E
the Superintendent and the Dy. Sup.'.)rintendent.

( 3) He will go into the question of the directives issued
in the concluding portion of Sunil Batra's case (W.P. 1009/79) (3)
with a view to ascertain whether these directions have been
) substantially complied with and to the extent there is shortfall
or default whether there is any reasonable explanation therefor. F

( 4) Being a Visitor of the jail, it is part of his visitatorial
functions for the Sessions Judge to acquaint himself with the
condition of tension, vice and violence and prisoners'
grievances ..... .
G
y We hold that the jail authorities in Rajasthan will comply with the
principles so laid down. We read down s. 46 and Rules 1 (f) and
79 ·Of the Rajasthan Prison Rules and sustain them in this limited
fashion.
OJ [1980] 4 sec 488.
(2) Rakesh Kaushik v. B. L. Vig, Supdt. Ce11tral Jail, New Delhi & Anr.
[1980] 3 S.C.R. 929.
(3) [ 1980] 4 sec 488.
1004 SUPREME COURT REPORTS [1981] 1 S.C.R.

A We direct the Respondents to act accordingly. Further we
remind that the Sessions Judges in the State of Rajasthan to remem-
ber the rulings of this Court in Sunil Batra I & ll and Rakesh Kaushik
(supra) and act in such manner that judicial authority over sen-
tensees and the conditions of their incarceration are not eroded by
judicial in-action.
B
We find that the old rules and circulars and instructions issued
under the Prisons Act are read incongruously with the Constitution,
especially Art. 21 and interpretation put upon it by tl]is Court. We.
therefore, direct the State Government of Rajasthan-and indeed,
all the other State Government,') in the country-to convert the
c rulings of this Court bearing on Prison Administration into rules
and instructions forthwith so that violation of the prisoners' freedoms
can be avoided and habeas corpu:t litigation may not proliferate.
Afiter all, human rights are as much cherished by the State as by
the citizen.
D
Since the petitioners have been released from separate confinement
and from cross-bar fetters and since counsel for the State has assured
us that nothing will be done in violation of the propositions set out
in the catena of cases of this court (Sunil Batra I & II and Rakesh
Kaushik (supra)), we deem it unnecessary to give any further
E directives pursuant to this habeas corpus application.

N.V.K. Petition allowed.